Tuesday, January 09, 2007

Why Civil Unions?

My post of January 5, 2007, " A Free Society Can Accommodate a Homosexual Minority," generated a rich set of comments. One thread asked the important question, why civil unions? Why not same-sex marriage? My answer is a bit different for civil society and for the church.

For both kinds of society, I believe that marriage as an institution is designed to unite the equal and complementary halves of the human species, a man and a woman, to make and rear children. Individual men and women, and individual marriages, approximate this ideal more or less fully. If they do not fully realize the ideal, they are not any lesser morally or ethically. Individual variation is normal and can have many benefits. The social norm of marriage sets a form of what is usually good for society as a whole, a norm around which all the actual marriages vary. A healthy society can tolerate quite a bit of variation, as long as the core is robust.

A free society ought to tolerate quite a bit of variation, for the sake of freedom. Too much variation, and too much freedom, can, of course, destroy society. That is always a risk. But we should err on the side of freedom wherever possible.

I think that our free civil society in the United States should support the social norm of marriage as a man and a woman united to make and rear children. This norm has ample support in our law, history, practice, and popular custom. Indeed, most people think it is the foundational institution of our whole society; I agree.

Some people, for one reason or another, cannot or do not wish to achieve that norm. I believe that our society is free and robust enough to accommodate many of those variations. Celibate people, married couples who cannot have children, even married couples who choose not to have children in the interests of a different social good are all good forms under the umbrella of our traditional standard of marriage. Single parents of many kinds, cohabiting couples, and cohabiting parents are good-enough forms of family life.

I do not see under our Constitution why same-sex couples, with and without children, are not good-enough approximation of marriages to be allowed under our civil law.

I think the term "marriage" means the equal and complementary forms of man and woman. A same-sex couple cannot, therefore, be married. This is the overwhelming sense of our tradition and our popular opinion about what "marriage" means. However, a civil union would give same-sex couples a good-enough legal status that was as close to marriage as the nature of their relationship allows. The countries with the most experience with homosexual civil unions, the Scandinavians, have found that most people – gay and straight -- can accept this approximation. Opinion surveys in the United States suggest that most people could accept a similar accommodation, especially in the younger generations.

I do not think homosexual couples would ever form civil unions at the same rate that straight couples marry. I think same-sex unions would have a higher break-up rate than marriages, in part because same-sex unions are much less likely to have children. Nonetheless, I believe a free society should offer the option to homosexual citizens who desire it. The effects on society of this accommodation would not be large.

The situation in the church is a little different, because, as I have argued earlier, I believe that the Bible does hold that same-sex sexual relations are sinful. I do not see how the church can condone an intentionally sexual relationship between persons of the same sex, even if such a relationship is likely to curb more or worse sins. I believe that the furthest that the church can go down this road is to tolerate same-sex relationships among those who are trying to avoid sex, even though we all sometimes lapse.

I do not relish reaching this conclusion, but I can see no other way around what appears to me to be the clear word and intention of Scripture, and the reality of desiring people in a fallen world.

I further think that the church can support same-sex civil unions, without asking the civil society to make any judgments about the sexual practices therein. The church itself, though, must make judgments about the sexual practices of those very same unions when they involve church members and officers. The church can, without inconsistency, recognize that the standards of the Constitution are not as demanding as those of the Bible. All citizens are entitled to the protection of the Constitution from the state, while all church members are entitled to choose to put themselves under the more stringent rule of the Bible in the church.

18 comments:

Gruntled: "civil union would give same-sex couples a good-enough legal status that was as close to marriage as the nature of their relationship allows."

What is the purpose of a preferential status for this type of relationship? Is it the sexualized nature of it that you mean to highlight?

If not, then, how is designated beneficiaries not good enough -- in fact how is it not a much better fit?

I know that those who would consider marriage to be no more than the homosexual relationship would claim that designated beneficiaries is insufficient because it is not marital status. Of course, that is the point: marriage is unique and is a common good; thus it is preferred above other types of relationships.

Yet, if I read you correctly, you do not consider the homosexual relationship to be a conjugal relationship due to the differences in the core of each type.

Perhaps it would be easier if I just asked: what is the core of the homosexual relationship that you believe society ought to prefer and establish with a new relationship status at law? What is the aspirational ideal embodied in that core?

These are the clarifications needed to determine where the middle ground exists, if it does, in your proposed centrist solution. From this flows a discussin of the merits and demerits of the proposal.

At least Gruntled recognizes that separate is NOT equal. Therefore, when sexually segregated couples form unions, they are NOT equal to the sexually integrated marriage of a man and wife.

Well that counts for something in my book.

The next question becomes, and i think Chairm just asked it, is what purpose is served by creating a new legal status for sexually segregated unions? Other than to possibly (ha! not likely) stop the incessant whining and anit-democratic practices of gender-bias activists.

"If not, then, how is designated beneficiaries not good enough -- in fact how is it not a much better fit?"

I urge you to search for and find the NJ law that creates civil unions. It's REALLY long and covers a LOT of areas beyond designated beneficiaries. It impacts child custody, apportionment of assets after divorce, visitation rights in medical facilities, inheritance, the exemption from testifying against a spouse, etc. It's a huge difference.

Heterosexuality is better than homosexuality and we don't want "them" to be like "us." So...

10 reasons gay marriage is wrong:

1) Being gay is not natural. Real Americans always reject unnatural things, such as eyeglasses, polyester, and air conditioning.

2) Gay marriage will encourage people to be gay, in the same way that hanging around tall people will make short people tall.

3) Legalizing gay marriage will open the door to all kinds of crazy behavior. People may even wish to marry their pets because a dog has legal standing and can sign a marriage contract.

4) Straight marriage has been around a long time and hasn't changed at all; women are still property, blacks still can't marry whites, and divorce is still illegal.

5) Straight marriage will be less meaningful if gay marriage were allowed; the sanctity of Brittany Spears' 55-hour just-for-fun marriage would be destroyed.

6) Straight marriages are valid because they produce children. Gay couples, infertile couples, and old people shouldn't be allowed to marry because our orphanages aren't full yet, and the world needs more children.

I think the most overwhelming reason to support civil unions is that it furthers so many legitimate governmental interests.

If people are going to have relationships and live toghether, in this culture, then we either have a mechanism in place for them to split up peacefully -- or we live with the alternative. Civil unions give the members access to protective orders and a civil recourse to being tossed out on the street with just the clothes on his back.

Also, as our society ages, we need to be concerned with encouraging people to have someone with the legal ability to make decisions for them in the event of catastrophic illness or injury.

It is easy to say that this isn't government's place, but it is equally easy to see that if these things aren't taken care of elswhere, the consequences have to be cleaned up.

Gruntled, while I've obviously disagreed with many of your assumptions and your conclusions throughout this series, I think you deserve kudos, not only for the "more excellent way" you've presented your case, but also for the compassion inherent in it. I think you're demonstrating the law of love, rather than the love of the law , and that such a contrast may indeed help the PCUSA find a viable 3rd way. I also appreciate that you've taken the time to genuinely understand all the issues involved here with all their complexity - though I've quibbled over some of the things you missed. ;) You avoided the simple rhetoric and sound-bite arguments. I appreciate that you realize that we're talking about real people's lives, not dictionary definitions; that we're talking about loving, nurturing, Spirit-filled relationships, and not just what people do with their genitals.

Again, I'm dubious that this really is a centrist position, but the conversation has to start somewhere. Thanks for that.

Though I am not a Catholic my position on this issue is identical with theirs. So, here is my response to the varied claims made for compromising with sin.

On the 10 sarcastic points of John Shuck:

No. 1. We are talking about immorality and even dangerous and unhealthy activities. Analogies with wearing glasses, etc. are ludicrous.

No. 2. Homosexuality is a behavior that definitely spreads, particularly when condoned by society. Study the ancient Greek history on this subject. (See Pederasty and Homosexuality in Ancient Greece at http://opine-editorials.blogspot.com)

No. 3 is correct but society may not allow people to marry their dogs. Polygamy, which is not as depraved as homosexual conduct, cannot be denied if homosexuality is approved. Likewise with incestuous relationships.

No. 4. Because of changes in the law marriage has been undermined and is more unstable than ever.

No. 5. Objectively marriage will never lose its meaning as the relationship between man and woman.

No. 6. Heterosexual marriages are valid because they are biologically, hence naturally complementary and in addition do not preclude procreation.

No. 7. This is false. No. 8. The first part is true. Homosexual conduct is a condemnable abomination. In our democracy we are free to vote our religious conscience and impact the well-being of society. Thank God.

No. 9. We wish to provide children optimal conditions for healthy and moral growth. We must not deliberately subject them to experimentation in fatherless or motherless homes practicing immoral behaviors to see how well they "succeed," whatever "succeed" means in a sick society.

No. 10 again confounds moral behaviors with the use of technology. Society can and does "adapt" to immoral conduct. Shame on it.

I'll try to address the other defenses for compromising with sin later.

The travesty of the imposed New Jersey legislation is not something we wish to see repeated. We need to move on to more state marriage amendments and ultimately passing a Federal Marriage Amendment.

Nevertheless, just about everything that the NJ legislature granted to homosexuals could be attained through personal legal contracts. Testifying against each other is an exception which I do not think needs to be granted. Can brothers living together testify against each other? That's what should apply to cohabiting homosexuals. Divorce laws should not apply since they are not and cannot be married. Child custody should be given to the biological parents if they are fit. If they are not fit the kids should placed for adoption in non-homosexual homes.

In hospitals you can write out an "advance directive." It specifies how you wish to be treated, who you trust and designate to visit and be consulted for tough medical decisions in your absence.

You mention: "Then change the word for the civil part to "civil union" and leave "marriage" for religion." Marriage works perfectly well for both civil and religious matrimony.

As I mentioned elsewhere, the simplest and most honest term to describe the homosexual relationship is, of course, THE HOMOSEXUAL RELATIONSHIP. If they wish to strive for government recognition of their relationship and gain privileges and benefits for it then they should simply call it what it is. The people should then vote to decide if that relationship warrants special distinctions, recognition and awards.

No one has been able to give me any explanation for why they don't want to issue a distinctive License of a Homosexual Relationship if they wish to privilege the relationship while recognizing that the term marriage is out of the question. Forget the euphemisms "civil union," "civil partnership," whatever. Those could apply to any number of very different relationships. New Jersey missed a golden opportunity as the activist court ordered legislation would have allowed them to call it "The Homosexual Relationship," provided they gave them all of the marriage benefits.

Because we are talking about real people we must as Christians focus thoroughly on their salvation. Ultimately that's what love is all about. Homosexuals have in one way or another been part of almost everyone's life. I have always supported their true constitutional freedoms and had very close friendships with homosexuals over the years in theater productions and in schools as an educator. When they entered their political campaigns to affirm their practices they began to hate me as I could not offer them such affirmations because of my Christian love for them as human beings.

A great many people that I cared for and grew up with also entered adulterous relationships and fragmented their families. I can not affirm that conduct either and simply do not attend their new weddings. Some despise me for this. My wife and I were recently verbally abused by an old friend who was having an affair and wanted us to sort of bless her new found "happiness" as she filed divorce papers against her faithful husband and shattered her family. We couldn't do that for Christ's sake. It hurt us very deeply. We are not callous people. We try to live by a higher calling. We often fail but we try again. There are many Christians wrestling with these conflicts. Some capitulate to the social pressures others hold the Christian line. We're holding the line and the Christian Churches must hold the line in their teachings for the love of God.

1. Gay marriage has been around forever and is nothing new. Gay divorce is as ancient as queer theory itself.

[...]

3. The old laws against interracial marriage used to selectively segregate the sexes on the basis of racial identity. Therefore, today it is justifiable to selectively segregate the sexes on the basis of homosexual identity.

[...]

5. In a pluralistic society, the only good religion is the one that approves of gay marriage. All other religions are bigoted and should be chased from the public square, or at the very least from adoption services.

6. It is awful that no woman is allowed to do what any man could do: marry a woman. When marriage law requires the equal participation of both sexes, that's unequal treatment of the sexes.

7. Children benefit from having double moms or double dads. That's why we outlaw polygamous and polyamorous families.

[...]

13. Every gay couple is like the married straight couple who can never make babies together because the husband lost his jewels to testicular cancer or the wife had life-saving surgery that removed her biological clock.

However, before considering the details, the basic question is about the purpose. The answer provides the basis for assessing the merits, and demerits, of the new relationship status.

Why should society establish a preferential status for the one-sexed arrangement?

Is it the presumption of homosexualized sexual relations?

If not, then, what are the limits on who may partake of this new status?

If yes, then, what is the societal purpose of such a sexualized status?

See, in New Jersey, they just attached civil union to the hip of marital status, minus the name. So the same questions (and answers) form the basis for consideration of replacing marriage recognition with this other idealized relationship type.

At the top I asked a series of questions and these may be part of the struggle you'd have with this issue.

I'd add a question that must go to the heart of such a struggle:

You said, "civil union would give same-sex couples a good-enough legal status that was as close to marriage as the nature of their relationship allows."

The question arises: what is the nature of that relationship type?

Is the sexualized aspect that triggers the need to approximate the marital status?

Wherever SSM or Civil Union has been enacted, this basic series of questions remains unanswered. This is not a minor problem with the entire issue, as presented by advocates of the SSM project, let alone by those seeking a centrist solution. But it is fair to ask and it is reasonable to expect a thorough answer.

Not necessarily from yourself, here on a blog, but directly from the advocates of the reform.

Rauch, Carpenter, Sullivan, and the other more radical advocates have failed to substantiate their desire for this preferential status. Minus that, it is hard to see where the middle ground could possibly be found.

I think the ground they seek, in effect, is far beyond marriage and that means staking out a centrist solution will harm that which you seek to protect and strengthen.

In Ontario the response of the SSMers to the court order that established the simultaneous parental statuses of three adults for one child has been nonplussed. In fact, part of the rationale for this decision, and for the SSMers' general applause, has been the recent enactment of SSM in Canada.

Something that would have been scorned as crazy talk had a defender of the man-woman criterion raised it as a possible outcome and, therefore, as a valid objection.

That is one example.

So the basis for preferential status should not be skipped when struggling with the issue. What flows from the reform will be unchartable if we don't have the merits and demerits upfront by which to navigate.

"Is the sexualized aspect that triggers the need to approximate the marital status?"

I do not start there. I start from believing the claim that some people have a same-sex attraction which is far beyond the physical. I see this kind of "Boston marriage" as part of the large and varied spectrum of friendship.

I'll respond at length out of respect for the lengths to which you have addressed this issue in your gruntled center way. I think you have put forth a good effort, however, the result is not a centrist solution.

It is a compromise that would solve little and would do much harm to marriage. Even the SSM side would embrace it only as a stepping stone toward enactment of SSM itself.

Where civil union has been enacted, it is attached to the hip of marital status. The only distinction is the name.

And it is presumptively a sexualized relationship status. See the copy-cat provisions regarding closely related combinations. See the mistaken use of the term spouse. And so forth.

This would not treat civil union like marriage. Rather, it would restrict the treatment of marriage to the limitations of the one-sexed arrangement. The core of marriage would be jettisoned in state recognition.

It would demote the preferential status of marriage to a tolerated status. Because it too would be yet another form of friendship on the spectrum.

I do not see this as protecting marriage for what it is.

Instead, it would be protecting the homosexual relationship for what it is not.

* * *

The core of Civil Union, as you envisage it, is same-sex attraction.

Would there be a prohibition on marriageable couples forming a civil union?

Whether your answer is yes or no, the necessary question is, why?

You will be asked this of alll sides who will assess whether or not your proposal is middle ground.

I think the proposal is a full concession to treating SSM as if it was marriage. Yet it would treat marriage as if it was a one-sexed arrangement.

The name is important to a social institution but only when that name carries special meaning. The enactment of civil union would gut that meaning. A substitution would be put in place.

As for the spectrum of friendship, well, that is very ambiguous.

The difference with the conjugal relationship (which is a also friendship that goes beyond the physical) is its core of integrating the sexes and combining this with responsible procreation. You have said as much, in your own words.

What is the difference with the civil union relationship from other friendships?

It lacks the core of marriage, with certainty, and yet civil union would attach itself to marital status.

And it would do so without justification for a preferential status for the homosexual relationship type.

That type of friendship is a subset of nonmarital arrangements, not all of these are one-sexed. Even your reference to Boston Marriage would indicate that much.

This is how your goal of finding a "good enough" status for the homosexual relationship would result in a tolerated status that would then be shared with marriage. The core of marriage would no longer be preferred. This would demote marriage.

It is not a good outcome.

I realize that you seek some sort of co-existence of marital status and some special status for the homosexual relationship (whether or not it is sexually involved).

In one of your early posts on this subject, you knew what the actual solution is: designated beneficiaries.

It is based on the trust relationship (i.e. a very inclusive recognition of friendship). It is available today. It could be made more accessible and in this way also more uniformly portable. It enacts no new relationship status. It would be more inclusive than SSM or Civil Union. And it is justified based on the actual needs of a very wide range of people. However, it is explicitly not marriage; no attachment to marital status except in the negative as marriageable and married combinations are ineligible.

* * *

Would civil union include the type of Boston Marriage that is comprised of two heterosexual women? Or two sisters? Or a daughter and mother?

Or must we refer to this civil union friendship with the word marriage attached -- as you have just attached it to the core of the nonmarital solution you envisage?

In sum: your solution changes marriage recognition; it guts the meaning of marriage by "un-preferencing" the core of the conjugal relationship; it is far too ambiguously based on the spectrum of friendship which subsumes marriage and the romanticized notion of the homsexual relationship. This does not bring order to the chaos that the deconstruction of marriage that the SSM campaign has been all about. That compaing promotes replacement of recognition of marriage with something else. Your solution, in effect, would solve that campaign's ambitions.

As you note, I think a "Ruth and Naomi" (reciprocal beneficiaries) solution would be better. I make a prudential judgment that it is not feasible. It is not enough to get peace from the same-sex marriage proponents, and it is too complicated for regular people/legislators to understand and keep understanding. Therefore, civil union is, I think, the nearest practical solution.

I had not known that the NJ law is restricted to same-sex couples. That is an interesting safeguard to prevent some of the European hetero marriage-lite that we have been seeing. I will have to think about that, but I think restricting civil unions to couples who cannot marry might be a good idea.

In all compromises, we face the "stepping stone vs. stopping stone" question. I think civil unions are a viable stopping point. In Scandinavia, which has more than a decade's experience with a variety of civil union regimes, it appears that this option has stopped the fighting.

As you note, I think a "Ruth and Naomi" (reciprocal beneficiaries) solution would be better. I make a prudential judgment that it is not feasible.

It was the solution in Hawaii where the SSM issue made its first big splash in the US. That solution exists throughout the US but it has not been repackaged in the more accessible form of Reciprocal Beneficiaries.

It is premature to give up the best solution in favor capitulation and the replacement of marriage recognition. Your centrist proposal looks more and more like a merger of nonmarriage and marriage.

Around the same time that Hawaii enacted Reciprocal Beneficiaries (and affirmed marriage as the union of one man and one woman), the Scandinavian societies went down a different route where the core marriage has become increasingly marginalized in social policy and in the culture.

That's the same route as the one that would merge civil union with marriage.

If civil union were detatched from marital status, and its language was not confuddled with that of the conjugal relationship, and if nonmarriageable combinations only where eligible, and, most importantly, if it was not limited to the presumptively homosexual relationship, then, this would be a repackaging of designated beneficiaries rather than civil union Vermont-style.

In New Jersey the legislature amended the marriage statute. In essence, marriage has been merged with nonmarriage.

Parties to a civil union shall have all of the same benefits, protections and responsibilities under [marriage] law, whether they derive from statute, administrative or court rule, public policy, common law or any other source of civil law, as are granted to spouses in a marriage.

Even the presumption of paternity:

The rights of the parties to a civil union with respect to a child of whom either becomes the parent during the term of the civil union, shall be the same as those of a married couple with respect to a child of whom either spouse becomes the parent during the marriage.

But that provision demonstrates inequality. No married woman is presumed the mother of a child born to her husband and another woman. This provision substitutes third party procreation for responsible procreation (where the man and the woman are directly responsible for the children they are presumed to have created together). How this will effect marriage in our society, not just in the courts, is probably given a hint in the recent Ontario court ruling that assigned a third parent to a child who had both a mom and a dad.

prohibitions against discrimination based upon marital status

The merger here is very explicit on those points which your proposal is supposed to protect the core of marriage.

Civil union is treated as a sexualized relationship on par with the conjugal relationship and thus prohibits combos in the following way:

A man shall not marry or enter into a civil union with any of his ancestors or descendants, or his sister or brother, or the daughter or son of his brother or sister, or the sister or brother of his father or mother, whether such collateral kindred be of the whole or half blood.

b. A woman shall not marry or enter into a civil union with any of her ancestors or descendants, or her sister or brother, or the 30daughter or son of her brother or sister, or the sister or brother of her father or mother, whether such collateral kindred be of the whole or half blood.

c. A marriage or civil union in violation of any of the foregoing provisions shall be absolutely void.

Why should sisters be barred from civil union if it is not a conjugal relaitonship?

Why should a daughter be prohibited from a civil status that benefits their friendship which goes beyond the physical?

This is unjust discrimination based on the presumption of sexual orientation.

Previously, marriage law did not refer to sexual orientation. Yet it was attacked for being too exclusive. What then would save civil union from the same attack?

Marriage, that's what. But marriage has just been merged with nonmarriage and its core is no longer the purpose of its recogniton, and its special status. In fact, that status is no longer based on the core of marriage but on the core of the presumptively homosexualized relationship.

Gruntled, a merger is not a defence of marriage -- neither politically, nor legally, nor culturally. And if the gamble is that this would bring peace and quiet to a divisive issue, well, it would do so at the cost of complete surrender to the flattening of marriage recognition.

Even in New Jersey, the SSMers have not provided reason for a preferential status for the one-sexed arrangement, let alone for the presumptively homosexual relationship. They talk of tolerance and in effect that is what marital status is reduced to: a merely tolerated status on par with nonmarriage.

If marriage is so profoundly flawed, then, by all means replace it with this other thing. If no such flaw exists, then, defend marriage for what it is and, if you feel compassionate towards the homosexual relationship, then, establish provisions for such a relationship type based on its unique merits and demerits.